Whither the WI Supreme Court?

The Wisconsin Supreme Court — known for decades as a paragon of honesty, ethics, and integrity for decades — has run into less glorious distinction in the last ten years. The following statements contrast the judgement of the Chief Justice of the US Supreme Court with that of the Chief Justice of the Wisconsin Supreme Court:

“Judges are not politicians,” Chief Justice John G. Roberts, Jr., wrote in the majority opinion in a 5-4 decision [Williams-Yulee v. Florida Bar], “even when they come to the bench by way of the ballot.” He went on, “Simply put, Florida and most other States have concluded that the public may lack confidence in a judge’s ability to administer justice without fear or favor if he comes to office by asking for favors.”

Justice Roberts’s opinion makes the connection between campaign contributions and the appearance of corruption or favoritism clear. But in Wisconsin, new recusal rules adopted in 2010 make recusal a matter of personal discretion. Each judge or justice decides for him or herself whether in a given case recusal is warranted. In defending the new recusal rules, Justice Roggensack took a position quite different from the one expressed by Chief Justice Roberts.

Patience Drake Roggensack, now the Chief Justice [of the Supreme Court of Wisconsin], wrote for the conservative majority in a 4-3 vote in favor of the rule, “We elect judges in Wisconsin; therefore, judicial recusal rules have the potential to impact the effectiveness of citizens’ votes cast for judges. Stated otherwise, when a judge is disqualified from participation, the votes of all who voted to elect that judge are cancelled for all issues presented by that case."

Justice Roggensack’s opinion reveals that she and her fellow conservative justices consider themselves to be representatives of the people who voted for them. Not impartial judges of the facts and the law, but partisans beholden to their supporters, including especially those who funded their campaigns!

Interestingly, when considering changes to the rules, the court rejected ones proposed by the League of Women Voters, a nonpartisan group, and instead adopted the extremely weak rules submitted by the Wisconsin Realtors’ Association and Wisconsin Manufacturers and Commerce, two right-wing groups who heavily supported the elections of the right-wing justices as well as the election of Governor Walker.

The recusal rule changes are only a fraction of what is troubling our Supreme Court, but they represent the direction the court has taken. Money, Eric O’Keefe, Wisconsin Club for Growth, Wisconsin Manufacturers and Commerce, Citizens for a Strong America, among other outgrowths of the same movement have aggressively taken control of all branches of our state government. There may be several avenues of recourse. The people are our best hope. Educate, talk to other people, vote, repeat.

Continue on to the next section where the basic responsibilities and procedures for the court are briefly explained.

The Wisconsin Supreme Court: The Basics

The Constitution of Wisconsin, like the US Constitution, for the purpose of checks and balances, divides the state government into three separate and independent branches: executive, legislative, and judicial. The judicial branch includes the Supreme Court, appellate courts, circuit, and municipal courts. The Supreme Court is the highest appellate court in the state. It is primarily responsible for interpreting and upholding the federal and state constitutions and laws. The Supreme Court has appellate jurisdiction over and administers the court system in Wisconsin. It also functions as the regulatory authority of the legal profession and law practice in the state.

Seven justices, each elected to a 10-year term, preside over the Supreme Court. To avoid sudden shifts in the makeup of the court, only one justice per year can be elected. In the case of a temporary vacancy — as is occurring in July this year when Justice Prosser retires, the governor may appoint a temporary. Following his or her appointment, the appointee must face statewide election in the first year that no other justice’s term ends. All judges are to be nonpartisan, as are the elections, lest the integrity of the Court be jeopardized.

The Supreme Court of Wisconsin reviews about 1000 cases per session, which runs from September to June. It generally receives approximately 1000 petitions for review every term. The Court has complete discretion over the cases that it will hear.

From Petition to Decision

The Court holds a petition conference to review requests from parties for Supreme Court review of a case. For each case accepted, a “reporting justice” is assigned.

At the pre-argument conference, the reporting justices for that day’s cases brief the other members of the Court on the details and important issues of the cases scheduled to be heard that day.

Attorneys present their cases at oral argument. Typically, three cases are heard in one day, each lasting one hour.

The Court holds a post-argument opinion conference where the reporting justices present their analysis of the cases heard that day and the justices cast tentative votes on the cases. For each case, a justice is assigned by random lot to draft the opinion.

At a later date, the justices meet in an opinion conference to discuss and vote on draft opinions. At this point, justices announce their intentions to write concurring or dissenting opinions.

The Clerk of the Supreme Court Office mandates an opinion (making the Court’s decision available to the parties and public) when all members of the Court have voted to release it. Concurring and dissenting opinions are released at the same time.

The Court’s official opinion is published in Callaghan’s Wisconsin Reports as the law of the state.

The Court will reconsider an opinion in very rare cases when a party can show that the Court has overlooked controlling legal precedent, important policy considerations, or a significant fact appearing in the record.

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